Earlier this month, a federal judge ruled that neither the New York Human Rights Law (NYHRL) nor the New York City Human Rights Law (NYCHRL) protect unpaid interns from a sexually hostile work environment.

Lihuan Wang worked as an unpaid intern for Phoenix Satellite TV US, a company that produces Chinese language television news programs in the United States. She alleges one of the company’s bureau chiefs, Zhengzhu Liu, invited her to talk to him about her job performance after a group lunch meeting, and then convinced her to go to his hotel room based on the excuse he needed to drop off some personal belongings. During the car ride to the hotel Mr. Liu made Ms. Wang extremely uncomfortable by discussing the sexual prowess of a black man who had dated a woman he knew. In the hotel he complemented Ms. Liu’s eyes before bringing her to his room. Once in his hotel room he asked her why she is so beautiful, threw his arms around her, attempted to kiss her, and squeezed her buttocks before she left.

After Ms. Wang rejected Mr. Liu’s advances, he suddenly stopped showing any interest in hiring her as an employee, and claimed Phoenix could not hire her because of a supposed “visa quota.” When Ms. Wang subsequently asked Mr. Liu about a potential job with Phoenix, he invited her to go to Atlantic City with him for the weekend, supposedly to discuss job opportunities. Ms. Wang declined his invitation and gave up on the possibility of a paid position with Phoenix.

Ms. Wang eventually filed a lawsuit in federal court alleging sexual harassment and retaliation in violation of both the NYHRL and the NYCHRL. However, in Wang v. Phoenix Satellite TV US the United States District Court for the Southern District of New York dismissed her hostile work environment claim.

Ms. Wang acknowledged the NYHRL applies only to “employees,” rather than unpaid interns. However, she argued the NYCHRL is much broader and applies to all individuals whose work is controlled by the company, whether or not they are paid. She relied on a previous case which recognizes the company’s right to control the individual’s work is the primary factor to determine whether she is an employee of a particular employer. The court rejected her argument, finding the right of control is used to determine which entity is an individual’s employer, not to determine whether someone is an employee at all.

However, the court did not dismiss Ms. Wang’s claim that Phoenix failed to hire her as an employee. It is, of course, unnecessary to prove you are an employee to establish a failure to hire claim since those claims are always brought by potential employees rather than actual employees. The court found there was enough evidence to support the conclusion that the company refused to hire Ms. Wang for a vacant position in violation of both the NYHRL and the NYCHRL. While the ruling is not entirely clear, it appears Ms. Wang’s remaining claims assert that Phoenix did not hire her because she refused to give into Mr. Liu’s sexual advances, and allege this constitutes quid pro quo sexual harassment claim and unlawfully retaliation.

The City of Jersey City recently passed a law that will require private employers to provide their employees 5 paid sick days per year. The law, which is the first of its kind in New Jersey, is scheduled to go into effect on January 24, 2014. New York City Passed a Paid Sick Leave Law earlier this year.

Employers are required to permit employees to use their paid time off for mental or physical health needs, including diagnosis, care, treatment and preventive care. Employees can use this time off to care for their own health needs, the health needs of their spouse, civil union partner, domestic partner, children, grandchildren, parents, grandparents and siblings; as well as for the health needs of the children, grandchildren, parents and grandparents of their spouses, domestic partners, or civil union partners.

In a statement released before the law was passed, Jersey City’s Mayor Steven M. Fulop explained that the right to take time paid medical leave time is “an issue that impacts the most vulnerable in our society and it is the right thing to do.” He further indicated that “[i]n New Jersey, some 1.2 million workers – that’s more than 1 in 3 of us – do not earn paid sick days.”

Under the law, covered employees will be entitled to earn one hour of paid sick leave for every 30 hours they work, up to a maximum of 40 hours of paid sick leave per year. As a result, it will apply to both part-time and full-time employees. Employees will begin earning sick time as soon as they are hired. However, they cannot begin using the time until they have worked for the employer for 90 days.

Although covered employers will be required to provide a minimum of 5 paid sick days per year to full time employees, companies can count any other paid time off, such as vacation time or personal time off toward this requirement as long as employees can use the paid time off for sick leave.

The new law applies to all companies with at least 10 employees in Jersey City, whether or not they work at the same physical location. However, it does not apply government employees, including employees of Jersey City itself.

Employees are entitled to carry over up to 40 hours of unused paid sick time from one year to the next. However, employers are not required to permit their employees to use more than 40 hours of paid sick leave per year, and are not required to pay employees for their unused sick leave time.

The law permits employers to seek proof of the medical condition when an employee takes off more than 3 consecutive sick leave days.

Mayor Michael Bloomberg recently signed a new law amending the New York City Human Rights Law (NYCHRL) to provide additional protections for women who are pregnant or giving birth. Specifically, the Pregnant Workers Fairness Act requires employers with at least four employees or independent contractors working for them to provide reasonable accommodations for pregnancy, childbirth, or related conditions even if the employee is not disabled. A reasonable accommodation is either a modification to the way a job is performed, or a change to a job duty, that permits the employee to perform the essential functions of her job. The new law goes into effect on January 30, 2014.

Under the NYCHRL, an employer can deny a reasonable accommodation if the employee still would not be able to perform the essential functions of her job, or if providing it would impose an undue hardship on its business. The employer has the burden to prove either of these defenses. In determining whether an accommodation would impose an undue hardship, a company can consider (1) the nature of the accommodation and its cost; (2) the financial and personnel resources of the location at which the accommodation would be provided; (3) the financial and other resources of the entire company; or (4) the composition of the company in terms of the workforce, geographic locations and other similar factors.

Under the Act, an employer must provide reasonable accommodations for pregnancy or child birth if it knows or should know the employee is pregnant. This suggests it is not necessary for an employee to request an accommodation for the employer to be obligated to provide one. Of course, the easiest way to ensure your employer knows you need an accommodation is to request it so there is no doubt your employer knows you need it. The same provision raises the question of what would happen if an employer tries to provide an unnecessary or unwanted accommodation. Presumably this should be addressed in a discussion between the employer and the employee (the “interactive process”), but there still could be issues if the employer believes it is legally obligated to provide an accommodation that the employee does not want.

The Act lists several examples of possible accommodations for pregnancy, including additional bathroom breaks and other breaks and rest time during the workday, leaves of absence, and assistance with manual labor. These are only examples, and other accommodations can be required when they are reasonable.

New York City employers also are required to provide written notice to employees about their right not to experience discrimination based on pregnancy, childbirth, or related medical conditions. Companies have to provide this notice to current employees within 120 after the law goes into effect, meaning by May 30, 2014. They also have to provide this information to any new employees when they are hired, and to conspicuously post it in the workplace in a location where it can be seen by all employees.

Earlier this month, New York’s highest court ruled that although an employee is not entitled to take an indefinite leave of absence as a reasonable accommodation under the New York Human Rights Law (NYHRL), they might be entitled to do so under the New York City Human Rights Law (NYCHRL).

In the case, Giuseppe Romanello worked for Intesa Sanpaola S.p.A. (Intesa) for approximately 25 years. He experienced major depression and other medical conditions that prevented him from working. Accordingly, he took a leave of absence under the Family & Medical Leave Act (FMLA). After a five-month paid leave of absence, the company’s lawyer sent a letter to Mr. Romanello’s lawyer indicating that his FMLA leave time was about to run out, and asking if he intended to return to work or abandon his job. Mr. Romanello’s lawyer responded that although he had no intention of abandoning his job, Mr. Romanello still was medically unable to work for the company, and needed an “indeterminate” leave of absence. The company fired Mr. Romanello in response.

Mr. Romanello then filed a lawsuit claiming his employer discriminated against him because of his disability in violation of the NYHRL and the NYCHRL. Both of those laws prohibit employers from firing an employee because of a disability if the employee can perform his or her job with a reasonable accommodation. Depending on the circumstances, time off can be a reasonable accommodation for a disability.

The trial court dismissed Mr. Romanello’s failure to accommodate claims under both the NYHRL and the NYCHRL. Mr. Romanello appealed, and his case eventually made its way to the New York Court of Appeals.

The Court of Appeals ruled that under New York State law an indefinite leave of absence cannot be a reasonable accommodation for a disability. This is consistent with how New Jersey has interpreted the New Jersey Law Against Discrimination (LAD).

In contrast, the Court of Appeals explained that under the New York City Human Rights Law there is no type of accommodation that is “categorically excluded from the universe of reasonable accommodation.” As a result, depending on the circumstances, an indefinite leave of absence could be a reasonable accommodation under the NYCHRL.

The Court concluded that Mr. Romanello had requested an indefinite leave of absence because his lawyer did not indicate when he expected to return to work, but instead indicated he needed an “indeterminate” leave of absence. As a result, it agreed that his claim under the NYHRL was properly dismissed. However, it reinstated his claim under the NYCHRL since he could be entitled to an indefinite leave of absence as a reasonable accommodation since the NYCHRL consistently has been interpreted to be broader than the NYHRL and the Americans with Disabilities Act (ADA). As a result, Mr. Romanello will be able to try to prove his claim under New York City law.

On August 30, 2013, Governor Christopher Christie signed two new employment laws. The first law expands the New Jersey Law Against Discrimination (LAD) to protect employees who are trying to obtain information to support a potential claim of pay discrimination. The second new law prohibits employers from asking employees or job candidates to provide their private social media information to the company.

The first new law amends the LAD to prohibit employers from retaliating against employees because they ask a current or former co-worker about an employee’s “job title, occupational category, and rate of compensation, including benefits.” It also protects employees who ask about another’s employee’s “gender, race, ethnicity, military status, or national origin.” These new whistleblower protections apply only if the information or question is intended to help with an investigation of potential discrimination regarding “pay, compensation, bonuses, other compensation, or benefits.” However, the statute makes it clear it is not intended to require anyone to disclose this information about him or herself or another employee. This amendment to the LAD went into effect immediately.

Interestingly, the original version of the law would have been an amendment to New Jersey’s whistleblower law, the Conscientious Employee Protection Act (CEPA). However, Governor Christie issued a conditional veto that changed it to amend the LAD instead. As a result, the LAD’s two year statute of limitations applies to this new claim instead of CEPA’s one year statute of limitations. However, the change also shifted the protection from the employee who discloses the information to the employee who requests the information.

Restrictions on Requesting Information About Personal Social Media Accounts

The second new law prohibits employers from asking or requiring current employees and job candidates to provide usernames or passwords to their personal social media accounts, or to otherwise allow the company to access those accounts. Although the statute was passed primarily in response to employers asking employees to provide their Facebook passwords, it applies to all personal social media accounts including LinkedIn, Google+ and Twitter.

This new law has several express exceptions. Specifically, if an employer receives “specific information” about an activity on an employee’s personal social media account, it can conduct an investigation (1) to comply with another existing law, legal requirement or prohibition against “work-related employee misconduct,” or (2) to determine whether the employee improperly used the company’s confidential or proprietary information or financial data. It also makes it clear employers can access and view any information that is publically available about an employee, such as information posted publically on Facebook. This new law will go into effect in four months.

Unfortunately, Governor Christie used a conditional veto to remove a provision that would have created a new private legal claim for employees whose rights have been violated under the statute. Instead, the only penalty for a violation is a civil fine not to exceed $1,000 for a first violation and $2,500 for a second violation. However, it is likely employees who are fired because they refuse to provide their social media account information to their employers will be protected by the existing whistleblower protection of CEPA, or will have a claim for wrongful discharge in violation of New Jersey public policy.

New Jersey’s Conscientious Employee Protection Act (CEPA) has long been described as one of the broadest whistleblower laws in the nation. Among other things, it prohibits employers from retaliating against employees because they object to, disclose, or refuse to participate in an activity they reasonably believe is illegal, criminal or fraudulent.

Despite CEPA’s broad reach, several past cases have ruled that employees are not protected by CEPA if their objections were part of their job duties. For example, a safety officer who complains about an unsafe work condition or a human resources manager who reports sexual harassment would not be protected by CEPA under those cases.

But earlier this month, in Lippman v. Ethicon, Inc., New Jersey’s Appellate Division ruled that line of cases is inconsistent with the way the New Jersey Supreme Court has directed courts to interpret CEPA. It ruled that “an employee’s job title or employment responsibilities” should not be the deciding factor in a CEPA case.

The Lippman case involved an employee, Joel Lippman, who worked for Ethicon, Inc., which is a subsidiary of Johnson & Johnson, Inc. Mr. Lippman was Ethicon’s Vice President of Medical Affairs and Chief Medical Officer. During his employment, Mr. Lippman repeatedly advocated for Ethicon to recall numerous products he believed were unsafe. He claims the company eventually fired him in retaliation for doing so, and brought a retaliation lawsuit under CEPA. The trial court dismissed Mr. Lippman’s case. It found he is not protected by CEPA because he was merely doing his job when he supported recalling the products he believed were unsafe, and therefore is not protected by CEPA.

The Appellate Division disagreed. It recognized that employees like Mr. Lippman are in the best position to know whether a company is complying with relevant legal standards. In fact, it labeled employees who are responsible for these types of issues “watchdogs.” It concluded:

[I]t would be a sad irony indeed if such a “watchdog” employee, like [Mr. Lippman], would be deemed by a court to fall outside the wall of protection created by the Legislature to whistleblowers. If an individual’s job is to protect the public from exposure to dangerous defective medical products, CEPA does not permit the employer to retaliate against such an individual because of his or her performance of duties in good faith, and consistent with the job description.

However, the court added a new requirement for “watchdog” employees under CEPA. Specifically, they must either prove they (a) “pursued and exhausted all internal means of securing compliance; or (b) refused to participate in the objectionable conduct.” In contrast, other employees who object to apparent violations of the law do not need to prove they pursued all internal means of securing compliance to be protected by CEPA.

The Lippman opinion is published, making it a binding legal precedent. It fixes a major loophole other courts have created in CEPA’s protection by protecting watchdog employees. However, since the decision conflicts with previous rulings by the Appellate Division the case is likely to wind up in the New Jersey Supreme Court, which hopefully will resolve this issue once and for all.

The Affordable Care Act, also known as “Obamacare,” is not just a health care law. It also includes whistleblower protection. The United States Department of Labor (DOL) recently released interim rules regarding the law’s anti-retaliation provisions.

The Affordable Care Act makes it illegal for employers to retaliate against employees who report certain violations of the Act. Specifically, it protects employees who complaint about apparent violations of its prohibition against (1) lifetime limits on medical insurance coverage, and (2) denying coverage because of a preexisting medical condition. It also prohibits employers from taking reprisal against employees who receive a tax credit or similar benefit for participating in a Health Insurance Exchange. It further protects employees who testify, participate or assist with a proceeding regarding a violation of one of those provisions.

To qualify for whistleblower protection, an employee must have complained to his employer, the federal government, or a state attorney general. In addition, the regulations make it clear the employee does not have to be correct about the violation of law he reported, as long as he had both an objectively reasonable belief (meaning reasonable from the standpoint of the employee who complained) and a subjectively reasonably belief (meaning from the standpoint of a reasonable person) that the company was violating one of the relevant provisions of the Act.

The interim regulations include a long list of examples of the type of actions by employers that would be prohibited if they are retaliatory. Specifically, in addition to termination, the regulations list “intimidating, threatening, restraining, coercing, blacklisting or disciplining” an employee regarding his or her “compensation, terms, conditions, or privileges of employment.”

Employees who experience retaliation in violation of the Act must bring a claim within 180 days after the retaliation occurred. The claim must be filed with the DOL’s Occupational Safety Health Administration (OSHA), which administers the Act’s whistleblower protections.

Under the interim regulations, once a claim has been filed OSHA has to determine whether it was filed within the 180 period and describes a claim that would violate the statute’s anti-retaliation provisions. Assuming these requirements are met, OSHA is then required to conduct an investigation. According to the regulations, OSHA is supposed to issue its initial written determination within 60 days after it receives the complaint. If the agency determines the employer violated the Act, it can order it to reinstate the employee and/or to pay the employee damages including lost wages and benefits.

After filing with OSHA, employees have the right to file a private lawsuit in federal court if either (1) the agency has not issued a final determination for 210 days after the employee filed the complaint with the agency, or (2) they are within 90 days after the agency issued its initial findings. However, an employee cannot bring a lawsuit after the DOL has issued its final determination.

The interim regulations also indicate that the employee who files the complaint has the burden to prove his or her complaint was a “contributing factor” in the employer’s decision to take the retaliatory action. In other words, the employee has to show his objection had at least some influence on the outcome of the company’s decision to take an adverse action against him. If the employee meets this burden then the employer is liable unless it can show, by clear and convincing evidence, it would have taken the same action toward the employee even if he or she had not complained.

It is important to recognize that the interim regulations have not been formally approved, and are still in the review stage. As a result, they may change before they become official.

When an employee brings a discrimination claim, the court first has to make sure there is enough evidence to support the basic element of a discrimination claim. This is called a “prima facie” case. Specifically, in a wrongful termination case an employee ordinarily has to show he or she (1) belongs to a protected class; (2) was employed by the company; (3) was performing her job before being fired, and (4) the employer sought to replace him or her. Alternatively, an employee can meet the fourth element by showing other circumstances that suggest the decision to fire the employee was discriminatory.

Usually, it is up to a judge, rather than a jury, to decide whether an employee has established a prima facie case. However, when there is a dispute about one of the elements it is sometimes necessary for a jury to decide it.

In the Shipe case it was disputed whether the employer sought to replace Ms. Shipe after it fired her. The Appellate Division concluded that the trial judge should have asked the jury whether Ms. Shipe either was replaced by a man, or fired under other circumstances that give rise to an inference of discrimination. In fact, it reversed the jury’s verdict and ordered a new trial because the jury was not asked this question.

I find this ruling perplexing. It is unquestionable the jury found Saker fired Ms. Shipe because of her gender. As I discussed last week, the Appellate Division found that conclusion was supported by sufficient evidence to withstand an appeal. But if the jury found Saker fired Ms. Shipe fired because she is a woman, then the jury had to have found she was fired under circumstances giving rise to an inference of discrimination. If that is true, then why would it be necessary to have a new trial to ask the jury to answer that question again?

The Appellate Division’s ruling appears to be erroneous for a second reason. Specifically, in Zive v. Stanley Roberts Inc., a 2003 case, the New Jersey Supreme Court ruled that when analyzing the prima facie case only the plaintiff’s evidence should be considered. The Appellate Division in Shipe recognized that Ms. Shipe presented evidence that she was replaced by a man. As a result, under Zive the court should have found that Ms. Shipe met the fourth element of her prima facie case. Instead, it reversed the jury verdict and ordered a new trial.

Fortunately, the Shipe decision is unpublished, meaning it is not a binding precedent.

New Jersey’s Appellate Division recently recognized that a company cannot escape liability for discrimination by having someone else make the final termination decision. The case was filed by Tina Shipe, an employee who worked for several different Shop Rite supermarkets over 17 years. Ms. Shipe was the only female meat cutter who worked for her employer, Saker Shoprites, Inc.

In January 2008, Saker fired Ms. Shipe. Saker claims Ms. Shipe became extremely angry and cursed loudly enough that other employees and customers could hear her after her department manager, Chris Antimary, accused her of violating several store policies. Based on information he received from Mr. Antimary, the company’s senior vice president of human resources, Kevin Maroney, made the decision to fire Ms. Shipe.

In contrast, Ms. Shipe testified that Mr. Antimary treated her poorly from the first day she began working in his store. Mr. Antimary then falsely accused her of violating several store policies in an attempt to set her up to be fired. Ms. Shipe claims that although she was upset by the false accusations, she never cursed or raised her voice. Rather, Mr. Antimary confronted her, demanded that she admit she violated the store’s policies and got in her face in a way suggesting he wanted to fight her. Ms. Shipe was extremely upset by his behavior, and as a result stayed in the store bathroom for approximately 10 minutes while she composed herself and tried to stop crying.

Ms. Shipe sued, alleging gender discrimination in violation of the New Jersey Law Against Discrimination (LAD). At her trial, the jury found in her favor and awarded her $198,894 in past economic losses (back pay), $486,200 in future economic losses (front pay) and $145,860 in emotional distress damages. The judge subsequently awarded her more than $67,000 in attorney’s fees and costs.

The employer appealed, asking the Appellate Division to reverse the jury’s verdict. It argued there was not enough evidence to support the jury’s conclusion that it fired Ms. Saker because she is a woman, rather than because she was insubordinate after Mr. Antimary disciplined her. However, in Shipe v. Saker Shoprites, Inc. the court found there was enough evidence for the jury to conclude the meeting was a set-up to falsely discipline Ms. Shipe because of her gender, and that her testimony was enough to dispute the company’s claim it fired her for supposedly using profanity after the meeting.

Saker also argued there was no evidence that Kevin Maroney, the Vice President of Human Resources who made the decision to fire Ms. Shipe, had any discriminatory bias. In fact, Ms. Shipe did not even claim he discriminated against her.

However, the Appellate Division rejected this argument because Mr. Maroney relied on the information he received from Mr. Antimary, and the jury found that information was discriminatory. The court explained that if this was not legally actionable, companies could avoid responsibility for discrimination by having someone who does not know the employee make final termination (and other disciplinary) decisions based on discriminatory information. The court therefore concluded that although there was no evidence Mr. Maroney discriminated against Ms. Shipe, there was enough evidence to support the jury’s conclusion that Saker fired her because she is a woman.

Unfortunately, that is not the end of the story. Next week I will discuss the reason why the Appellate Division still reversed Ms. Shipe’s jury verdict, and why I think it was a mistake for it to have done so.

In addition to prohibiting employment discrimination and harassment based on race, gender, sex, disability and other specific protected categories, the New Jersey Law Against Discrimination (“LAD”) also prohibits companies from retaliating against employees who object about discrimination or harassment in the workplace. The New Jersey Supreme Court recently clarified that this protection applies to employees who object about sexually offensive conduct toward women even if no women were aware of the offensive conduct. In the process, the Court seems to have expanded the LAD’s protection against retaliation to protect employees irrespective of whether it was reasonable for them to believe the harassment or discrimination violated the law.

United Parcel Service, Inc. (UPS) demoted Michael Battaglia shortly after he objected that his supervisor, Wayne DeCraine, called female employees “c*nts,” referred to a particular woman as “that b*tch,” called another female employee “big t*ts,” expressed his desire to have sex with another female employee, referred to an employee named Regina as “Vagina,” and discussed pornographic websites he visited at home. He also reported the fact that Mr. DeCraine was involved in a sexual relationship with a female employee. What distinguishes Mr. Bataligia’s case from most other cases is Mr. DeCraine did not engage in this sexually offensive conduct in the presence of any women, so no women even arguably were subjected to a hostile work environment.

Two years ago, New Jersey’s Appellate Division ruled that Mr. Battaglia’s objections were not protected by the LAD’s anti-reprisal provision. It did so because Mr. DeCraine’s conduct was not unlawful sexual harassment since no woman heard his offensive language, the romantic relationship he was having with another female employee was consensual, and there was no suggestion any woman was fired, demoted, or experienced another adverse employment action because of her gender. It interpreted the LAD’s anti-retaliation provision to require evidence of actual discrimination or harassment.

But the New Jersey Supreme Court disagreed. In Battaglia v. United Parcel Service, Inc., it ruled employees are protected by the LAD’s anti-retaliation provision if they object about actions they in good faith believe violate the LAD even if they are wrong. The Court recognized that employees are not employment lawyers, and do not necessarily know where the line is between actionable discrimination and merely offensive conduct.

In reaching this conclusion, the Court seems to have eliminated the requirement that an employee must reasonably believe the conduct he complained about violated the LAD to be protected from retaliation. The Court initially noted that under one of its previous rulings an employee must show his “complaint was both reasonable and made in good faith.” But later on the Court seems to drop the reasonable belief requirement altogether, holding that:

[W]hen an employee voices a complaint about behavior or activities in the workplace that he or she thinks are discriminatory, we do not demand that he or she accurately understand the nuances of the LAD or that he or she be able to prove that there was an identifiable discriminatory impact upon someone of the requisite protected class. On the contrary, as long as the complaint is made in a good faith belief that the conduct complained of violates the LAD, it suffices for purposes of pursuing a cause of action.

In other words, the Court appears to have ruled employees only have to prove they had a good faith belief that the employer was violating the LAD, but not necessarily that their belief was reasonable. If so, the Court has extended the LAD’s protection to many employees who sincerely but unreasonably believe their employers have engaged in unlawful harassment or discrimination.

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